SOME CONSTITUTIONAL 
ASPECTS OF 
TERRITORIAL EXPANSION 



BY 



HOWARD LESLE SMITH 



A PAPER READ BEFORE THE LAW 
CLUB, CHICAGO, NOVEMBER 26, 1898. 



PUBLISHED BY THE CLUB FOR ITS 
MEMBERS 



£'713 



COMPLIMENTS OF THE LAW CLUB OF CHICAGO 



SOME CONSTITUTIONAL ASPECTS OF 
TERRITORIAL EXPANSION. 



It is sometimes said that the problem of National expan- 
sion which now confronts the American people is not a new- 
one; but I insist that in its present aspect it is absolutely 
new. There have been before, to be sure, propositions for 
expansion, some of which have materialized in increased 
territory; but such propositions have always related to ter- 
ritory contiguous to the United States, or at least not so 
widely separated from it, nor so vastly different from it in 
character, but that its admission into the Union as a State 
or States might be fairly said to have been in contemplation 
at the time of its annexation. All of the treaties of ces- 
sion have provided in general terms, for such admission 
of adjacent territory into the Union so soon as the same 
should be fit for such admission.' 

The pending treaty with Spain will be the first from 
which such a provision will be omitted. 

The present proposition is for the admission of territory 
that no man in his senses, with any sort of information as 
to the situation, condition and population of the territory, 
can imagine will ever become a State or States of the Ameri- 
can Union. If the Philippine Islands are added to the ter- 
ritory of the United States, it can not be with any expecta- 
tion that they will ever be held by thi.s government in any 
other relation than that of subject colonies, to be ruled, 



' These treaties may be found iu 8 Stat, at Large, 200, 25'2; 9 Id. 922; 10 
Id. 1031; 15 Id. 539. 



beneficently, it is to be hoped, but nevertheless to be ruled 
from Washington. 

This is a proposition of vast importance to the people of 
the United States and absolutely novel. The problem does 
not present itself in this light, perhaps, to a majority of 
those who advocate annexation; but it is because they be- 
long to tluil optimistic class, governed by sentiment rather 
than reason, who refuse to burden their minds with investi- 
gations of fact, but who trust that somehow and in some 
way, in the Lord's good time, everything will, by virtue of 
the good luck which has heretofore attended the American 
Nation in its various experiments, eventually turn out 
all right. These men read that the Philippine Islands are 
eight thousand miles from our shores; but they do not 
stop to reflect that this means that they are more distant 
from us than atiy portion of the Continent of Europe; 
that the}' are as far from us as Persia and Arabia and 
the sources of the Nile; that Manila is as distant from 
San Francisco as Mecca and Khartcnini are from New York, 
anil that their capital city of 250,000 inhabitants contained 
four American residents duritig 189G-7. They do not con- 
sider that these islands lie wholly within the tropics, reach- 
ing to within less than five degrees of the ecjuator, and that, 
in climate' and general characteristics, they are all that is 
implied by the term tropical and equatorial. And I say 
this without any disposition to speak disrespectfully of the 
e(iuator. They lie within a zone in which no white race, 
let alone Anglo-Saxon race, has ever been able to establish 
itself successfully in the history of the world. Benjamin 
k'idd places the practical limits of the tropics under ordi- 
nary circumstances at thirty degrees on either side of the 

' A'< to climate, see " The Pliilippinf Islamic and Their People."' pp. 63 
et seq. and 617. by Dean C. Worcester. MacMilhin Co., 1898. 



equator, and says of this belt, " Tlie attempt to acclimatize 
tlie vvliite man in the tropics must be recognized to be a 
bhmder of the first magnitude. All experiments based on 
the idea are mere idle and empty enterprises foredoomed to 
failure. Excepting only the deportation of the African 
races under the institution of slavery, probably no other 
idea whicli has held the mind of our civilization during the 
last three hundred years, has led to so much physical and 
moral suffering and degradation, or has strewn the world 
with the wrecks of so many gigantic enterprises." ' Tlie 
northernmost point of the northernmost island of any con- 
sequence in this group, lies less than nineteen degrees from 
the equator. They are thickly inhabited by savage races of 
the Malay family, a large proportion of whom are Mussul- 
mans in the South, and Chinese in the North, who have no 
more desire to be elevated by Anglo-Saxons than the 
benighted blacks of Wilmington, N. C, who have recently 
fled from their homes to escape that elevation, which, never- 
theless, some score or more of their number underwent 
because of their inability to get away quick enough. 

Of labor there is an endless amount and fabulously cheap." 
No American workingman will ever think of seeking em- 
ployment in the Philippine Islands, where a few cents per 
day would be all that he could expect to receive until fever 
claimed him for its own. Tlie only class of Americans who 
could ever be expected to emigrate to the Philippines and 
engage in business there are capitalists, who might reason- 
ably be expected to undergo the dangers and inconveti- 
iencesof a pestilential tropical climate for a season, in order 

' The Control of the Tropics, p. 48, by Benjamin Kidd. MacMillan Co., 
1898. 

- See " Yesterdays in the Philippines," by Joseph Earle Stevens. Charles 
Scribner's Sons, 1898; " The Philippine Islands and Their People," p. 617. 



to reap rich harvests in the markets of the United Slates by- 
exploiting the great natural resources with the wonderfully 
cheap labor of the Philippines. 

But if this were not so, if they lay in a temperate zone, 
and were of a character to tolerate or invite Anglo-Saxon 
colonization, their mere distance from us would make it 
wholly impracticable that they should ever become States 
of the American Union. When even (Ireat Britain finds it 
impossible to admit to participate in her government the 
enlightened people of Canada aii<l .Vustralia by reason of 
their distance from the seat of government and consequent 
differences in interests, we may rest well assured that no 
barefooted, breech-clouted senator from Luzon will ever 
require the aid of an interpreter at Washington to explain 
his meaning to his fellow-senators from Massachusetts or to 
swap funny stories with his fellow-senator from Illinois. 

Unless all history and all precedent are worthless the atl- 
mission now, or at any future time, of the Philippine Islands 
into the Union of American States as States is as wildly 
fantastical and impracticable as the dream of an opium 
eater. 

The question then becomes, is there any place under the 
American Constitution for permanent colonies, and, if so, 
what incidents will the Constitution attach to such relation? 

It may be asserted with reasonable positiveness that the 
framers of the American Constitution did not contemplate 
the possibility of the territorial growth, in any njanner or 
to any extent, of the government they estabhshed under the 
forms of that Constitution. The Constitution contains no 
provision for annexations, and this omission is itself very 
signilicant. It seems exceedingly pnUjahle that if the 
Constitutional (^)nvention had intended or desircii that 
foreign nations, or largo jtortions of them, might he en- 



grafted into the American Union by any ordinary govern- 
mental agency or procedure, it would have specifically 
provided therefor in the fundamental charter, and especially 
have thrown limitations around the exercise of such right. 
A power of such importance would scarcely have been left 
to be inferred from the power to make treaties and declare 
war. For it will not be forgotten that one of the most not- 
able characteristics of the members of the Convention was 
a jealous}' and distrust of each other which led them to 
provide with extraordinary care and caution against the 
anticipated encroachments of one State, section or interest 
upon another. It is hardly conceivable, therefore, that if the 
New England States had foreseen a possibility of Louisiana 
or Florida being admitted into the Union without their con- 
sent, or if the Southern States had foreseen a like possibility 
as to Canada, they would not have agreed in demanding and 
insisting on such constitutional provisions, with reference 
to their admission and participation in the Government, as 
might have been deemed sufficient to protect them from the 
imagined danger, on the one hand of southern, on the 
other of northern preponderance and domination. But tiie 
Constitution says not a word upon the subject, nor was the 
question ever raised or mentioned in the Convention, so far 
as the debates have been reported. 

We shall have the less difficulty in believing that no such 
thing as territorial expansion by legislative or executive act 
was contemplated by them, if we try to put ourselves in 
their place and recall that they regarded themselves as, and 
in fact were, ambassadors of independent powers, met to- 
gether for the purpose of forming an offensive and defensive 
alliance, but without an}' intention of surrendering to the 
central authority one single iota of sovereignty not abso- 
lutely necessary to accomplish the purposes of the alliance. 



6 

Tliis was the unmistakable attitude of practically all of tiie 
members, though they diliered somewhat widely as to the 
extent to which the purposes of the alliance required the 
separate sovereignties to surrender the attributes of their 
sovereignty. The Constitution is substantially the com- 
promise of their differences on this question. 

Hut, while the instrument they signed is called a Tlonsti- 
tution, they regarded it rather in the light of a treaty, to 
which their several States were the signatory powers, or as^ 
the j)artnership agreement of a firm of thirteen. The idea of 
a national entity — of national existence, power and dignity, 
quite separate and apart from, and superior to the several 
States of the Union — is a concept of a later age, apprehended, 
if at all, but very dimly, and by very few of the framers of 
the Constitution. 

Now, no State can become a party to an existing treaty 
between other States, or entitled to any of the benefits «-f 
such treaty, without the consent of all the signatory States. 
No partnership of thirteen can become one of fourteen with- 
out tiie consent of all the thirteen. It is not a question of 
majorities. There must be unanimous consent. And if the 
framers of the Constitution contemplated the possibility (as 
they may very well have done) that perhaps some day 
Canada or Florida or Loui.siana or Mexico might wish to 
join them in a like defensive or ollensive arrangement, tliey 
considered it quite unnecessary to provide for any such 
contingency in the Constitution, because that instrument 
was intended only for the uses of the then created partner- 
ship, and might or might not be made the basis of some 
other and future partnership between other partners. That 
could take care of itself when tiie time came. 

That the acquisition of colonies, to be held in subjection 
as such, and not erected into ."^Into?. was within tiieir pur- 



view we can not for a moment imagine. Such a proposi- 
tion would have been received with as much surprise as a 
present claim of such powers, on behalf of the Board of 
Eilucation of the city of Chicago. If any proposition for 
colonial empire had been presented to them, there can be 
no reasonable doubt that it would have been scornfully re- 
jected, as inconsistent with the principles on which they 
justified their own independent national existence. They 
would have supposed that a "decent respect to tlie opinions 
of mankind '" required that they should not so soon stultify 
themselves. Nor would they, 1 fear, have been able to 
share the opinion of a recent distinguished essa3'ist before 
the Chicago Literary Club,' who expresses the opinion that 
we " can be trusted to promote self-government in whatever 
part of the world and with whatever subject ^copulations." 
We are not especially surprised to learn that those, to whom 
such words as" self-government" and "subject populations '^ 
suggest nothing incongruous, are enthusiastically in favor 
of subjecting millions of people on the other side of the 
globe, to the yoke of freedom. But our ancestors, we may 
be sure, were not of that number. Indeed, until the present 
summer, there has never been any doubt, so far as I know, 
thrown upon this proposition. Certainly those charged by 
the Constitution with the ultimate interpretation of the 
instrument have never sanctioned any other view, but have, 
on more than one occasion, given it solemn emphasis. 
Thus in the Drcd Scott case, 19 How. 393, in 1856, Chief 
Justice Taney said, in speaking of this subject: 

" There is certainly no power given by the Constitution 
to the Federal Covernment to establish or maintain colonies 
bordering on the United States or at a distance, to be ruled 
and governed at its own pleasure; nor to enlarge its terri- 

' Mr. Franklin MacVeagh. Chicago Times-Herald, Nov. 2. 1898. 



torial limits in any way except by the admission of new 
States. That power is plainly given; * * * but no 
power is given to acquire a territory to be hel<l and governe(l 
permanently in that character." 

Speaking further of such territory, he says: " It is 
acquired to become a State and not to be held as a colony, 
and governed by Congress with absolute authority. * * * 
It may be safely assumed that citizens of the United States 
who migrate to a territory belonging to the people of the 
United States can not be ruled as mere colonists, dependent 
upon the will of the general government, and to be governed 
by any laws it may think proper to impose. The principles 
upon which our governments rest, and upon which alone 
tliey continue to exist is the union of States, sovereign 
and independent within their own limits in their internal 
and domestic concerns, and bound together as one people 
by a general government, possessing certain enumerated 
and restricted powers, delegated to it by the people of the 
several States, and exercising supreme authority within the 
scope of the powers granted to it, throughout the dominion 
of the United States. A power, therefore, in the general 
government to obtain and hold colonies and dependent ter- 
ritories over which they might legislate without restriction, 
would be inconsistent with its own existence in its present 
form." 

While tiiero were dissenting opinions in the Dred Scott 
case, and while some of the conclusions of that o|)inion 
were afterward overruled in a trial b}' battle, no criticism 
was made by either dissenting justice of this statement of 
the relation of the government to its Territories, nor was 
there any thing in the war or its results, nor has there been 
any judicial opinion since expressed by that court, which 
tends to weaken at all the force of Tanov's statement. Oik 



the contrary, so late as the 141st U. S., in McAllister v. 
United &tatcs (p. 174), the court, commenting on the fact 
that the Constitution does not provide for territorial judges 
that permanency of tenure which is guaranteed to all other 
judges of United States courts, says : 

"The absence from the Constitution of such guaranties 
for territorial judges was, no doubt, due to the fact that the 
organization of governments for the territories ivas but tem- 
iwrari/ and would be superseded when the Territories became 
States of the Union." 

But if, notwithstanding all these considerations, any 
d(»ubt remains as to the correctness of the preceding views, 
it will be removed by a consideration of the circumstances 
attending the annexation of Louisiana in 1803. The Con- 
stitution w^as then sixteen years old; Jefferson was Presi- 
dent, Madison was Secretary of State, and Monroe was one 
of the two commissioners who negotiated the treaty. No 
American treaty ever had a more distinguished set of spon- 
sors. By it the District of Louisiana, lately acquired by 
Napoleon from Spain, and not yet reduced to possession by 
the French, was transferred to the United States for fifteen 
millions of dollars. 

That this treaty exceeded the constitutional powers of the 
executive was at first conceded by nearly every one, both 
Federalists and Republicans. 

Jefferson himself expressed the opinion that the treaty 
made blank paper of the Constitution, and that if the treaty- 
making power were boundless, " then we have no Constitu- 
tion." But he, nevertheless, made the treaty and relied for 
validating it upon an amendment to the Constitution. 
Two such amendments were drawn by Jefferson, and after- 
ward a shorter one was in fact proposed in the Senate, at 
the suggestion of Madison, by the Federalist Senator from 



10 

Massachusetts, John Quiucy Adams, and would probably 
have been almost unanimously carried but for an unexpected 
complication having nothing to do with the merits of the 
question, but in consequence of which it was almost unani- 
mously buried. 

Napoleon, in acquiring Louisiana from Spain, had given a 
solemn pledge " that it should at no time, under no pretext, 
and in no manner, be alienated or ceded to any other 



) ; I 



power. 

Of course, Napoleon's act in ceding it to the United States 
was an absolute breach of faith with Spain. Nor had the 
stipulation been an empty formalitv with Spain. It had 
been her intention, thereby "to interpose a strong dyke 
between the Spanish colonies and the American posses- 
sions," her xMini-ster for Foreign Affairs declaring, with pro- 
phetic tongue, " The United States, having a much firmer 
hold on the American continent, should tiiey take a new 
enlargement would end by becoming formidable, and would 
one day disturb the Spanish possessions.'" Spain did not, 
therefore, take kindly to the First Consul's act, but on the 
contrary protested vigorously; and as the cession by Spain 
had never been consummated by delivering possession ta 
the French, but the Spanish Intendant was still in command 
at New Orleans, it seemed likely that Spain might assert 
that Napoleon's breach of his agreement gave Spain the 
right to rescind her cession and reclaim the province. 
Under these circumstances it was thought that any discus- 
sion of the constitutionality of the treaty would be" inop- 
portune," as tending to call in question the legality of our 

' D'Azura to Talleyrand, June 6. 1803. Adam's Hist, of Jefferson's First 
Administration, II. 58. Chas. Scribner's Sons. 1891. 

H'ovallos toT.illeyrand, Aelam's Hist, of Jeff.-rson's Fir<t Administra- 
tion. II. 00. 



11 

title and encourage Spain to persist in her pretensions. 
Accordingly Jefferson wrote to bis premier, " 1 infer that th& 
less we say about the constitutional difficulties tbe better; 
and that what is necessary for surmounting them niust be 
done sub silentio." ' In the face of this threatened foreign 
complication all parties concluded, as they have since done 
on some occasions, to " stand behind the President '' and 
let the Constitution take care of itself. 

It thus appears that practically we were committed to the 
doctrine of annexation by treaty against the real opinion of 
nearly everyone, b}' reason of the Spanish grievance against 
Napoleon, and that if Spaih had at that time been less insist- 
ent we should not improbably have adopted a theory of the 
Constitution which would make it impossible for us to now 
take from Spain her colonies — by treaty, at least. 

I assert, then, with considerable confidence, that the 
framers of the Constitution did not intend to provide, and 
did not at the time dream that they had provided, for the 
addition to the thirteen original States and their Territories 
of foreign territory by any of the governmental agencies or 
processes provided in the Constitution. 

But it long since ceased to be a question of any practical 
importance what the framers of the Constitution intended. 
It is still the theoretical rule, no doubt, applicable as well to 
the Constitution as to all other laws and charters, that in 
construing them it is not necessary to go further than to 
ascertain the intention of the law-makers. 

So late as the Dred Scott decision, Chief Justice Taney, 
speaking of the Constitution, said; " While it remains 
unaltered it must be construed now as it was understood at 
the time of its adoi)tion. It is not only the same in words 

'Id. II. 86. 



12 

but the same in meaning, and delegates the same powers to 
the government and reserves and secures the same rights 
and privileges to the citizens, and as long as it continues to 
exist in its present form it speaks not onlv in the same 
words but with the same meaning and intent with which it 
spoke when it came from the hands of its framers and was 
voted on and adopted by the people of the United States. 
Any other rule of construction would abrogate the judicial 
character of this court and make it the mere reflex of the 
popular opinion or passion of the day." 

These are brave words; but since the Civil War, at least, 
the rule has been substantially a dead letter. Even as early 
as the Louisiana debates, John Randolph spoke in ill-con- 
cealed impatience of what he called the " parchment bar- 
riers " of the Constitution, and the country has never per- 
mitted itself to be more than delayed, in nnytliing that it 
really desired to do, by deference to the opinions of the 
Fathers. It has always acted on the principle, not ina[)tly 
expressed by the same essayist already quoted, when he 
says, "and once more let us not be over impressed in this 
crisis by constitutional technicalities. Any country with 
a written Constitution will alwavs be hampered in a new 
departure." 

In construing the Constitution, the rule, though perhaps 
not openly admitted, has practically become to test its 
meaning by ascertaining the extent to which the language 
used can be stretched in the light of modern opinions and 
modern necessities, real or imagined, with very little regard 
indeed for what was actually in the minds of the men who 
used the language. 1 mention this merely as an historical 
fact and without any intention of here criticising the tond- 
enov. It may perhaps very well be that the Constitution, 
interpreted according to the intentions of its makers, would 



13 

be unsuited to changed modern conditions, and that it was 
necessary that it should either be perverted from its original 
meaning or else abandoned altogether; that it should either 
bend or break. However that may be, the policy of bend- 
ing was long since adopted. The annexation of Louisiana 
furnishes one of the most notable instances thereof. It was 
justified under the power of the President to make treaties 
by the practically unanimous vote of politicians, who, no 
doubt, did not want to be accused of "voting for Spain." 
But the question remained — and the debate was principally 
over it — whether the acquired territory became by the ces- 
sion for all purposes a part of the United States, and thus 
subject to its Constitution and laws, or whether it was sim- 
ply the property of the United States, to be dealt with as it 
pleased without regard to tlie Constitution, the benefits of 
which, on this latter theory, were reserved for the original 
contracting States. While the debates on Louisiana can not 
be said to have settled this question, the legislation in which 
they resulted proceeded rather on the latter theory — that 
is, that the conquered territor}' was not subject to the Con- 
stitution, but might be governed arbitrarily by Congress 
and the Executive without regard to the limitations of the 
Constitution. 

These views received apparent judicial approval in the 
case of American Ins. Co. v. Canter, 1 Peters, 511, decided in 
1828. This case arose out of and concerned tlie Florida 
cession of 1819. 

In it the court held that certain territorial courts estab- 
lished in Florida by Congress were non-constitutional 
courts; that is, that they were valid courts and exercised a 
valid jurisdiction, although if Florida had been a State the 
law creating such courts would have been invalid. 

This decision, while containing some inconsistent state- 



14 

inents, seems at first blush to go a long way toward declar- 
ing the uncontrolled power of Congress over an annexed 
territory, irrespective of constitutional restrictions; but as 
thereafter linnted and defined in McAllister v. United States, 
141 U. S. 174, this apparent tendency of the decision in the 
Canter case disappears. It is there explained, upon reason- 
ing which seems irrefutable that the judicial power of the 
United States over Territories is of two sorts; first, that 
which the United States exercises over all of its territory, 
whether State or territorial ; and, second, that which it exer- 
cises over the Territories alone, by reason of the fact that in 
the Territories Congress is the supreme legislative body, 
exercising there, in addition to its general rights over the 
United States, all the powers which might be exercised by 
a Territorial Legislature. 

The next notable judicial contribution to the question 
under discussion was rendered, twenty-eight years after the 
Canter case, in the Dred Scott decision. So far as it relates 
to the question now before us, the opinion of the court, ren- 
dered by Chief Justice Taney, is very able and has not been 
altered or reversed by either the catastrophe of domestic 
revolution, or by any subsequent pronouncement of the 
court which rendered it. A few quotations from this 
opinion can not well be avoided, even if it were possible to 
improve upon them. 

•• The power of Congress over the person or property of a citiz.'n." says 
the Chief Justice, "cin never he mere tUscretionary power under our Con- 
stitution and form of government. The powers of the government and 
the rights and privileges of the citizen.s are regulated and phiinly defined 
by the Constitution itself. And when the territory becomes a part of the 
United States the Federal Government enters into possession in the charac- 
ter inipres.«ed upon it by those who created it. It enters upon it witli its 
powers over the citizen strictly defined and limited by the lonstif ution. 
from which it derived its own existence and by virtue of which alone it 



15 

continues to exist and iict as a government and sovereignty. It has no 
power of any kind beyond it; and it can not when it enters a Territory of 
the United States put off its character and assume discretionary or despotic 
powers which the Constitution has denied to it. It can not create for itself 
a new character, separated from the citizens of the United States and the 
duties it owes them under the provisions of the Constitution. The Terri- 
tory beiner a part of the United States, the government and the citizen both 
enter it under the authority of the Constitution, with their respective riglit3 
defined and mari\ed out, and the Federal Government can exercise no power 
over his person or property beyond what that instrument confers, nor law- 
fully deny any right which it has reserved." 

This has been many times reiterated since the war. Thus 
in Murphy v. Ramsey, 114 U. S. 15, the court, while affirm- 
ing in the broadest terms the political power of the general 
government over the Territories, say: "It may well be ad- 
mitted in respect to this, as to every power of society over 
its members, that it is not absolute and unlimited. * * * 
The l^ersonal ami civil rights of the iniiabitants of the Terri- 
tories are secured to them, as to other citizens, by the prin- 
ciples of constitutional liberty, which restrain all tlie agencies 
of government, State and National; their political rigfds are 
franchises which they hold as privileges in the legislative 
discretion of the Congress of the United States. * * * 
If we concede that this discretion in Congress is limited by 
the obvious purposes for which it was conferred, and that 
those purposes are satisfied by measures which prepare the 
people of the Territories to become States in the Union, still the 
conclusion can not be avoided that the action of Congress 
here in question is clearly within that justification." 

In the great Mormon Church forfeiture case, 136 U. S. 1, 

the court said: 

" Doubtless Congress, in legislating for the Territories would be subject to 
those fundamental limitations in favor of personal rights which are formu- 
lated in the Constitution and its amendments; but these limitations would 
exist rather by inference and the general -spirit of the Constitution, from 



16 

which Congress derives its powers, than by any express or direct applica- 
tion of its provisions." 

This language was quoted with approval in McAUiMcr v. 
U. S., heretofore cited, and in Anicrican Pab. Oompanrj v. 
Fisher, 166 U. S. 464, wherein it was held that the Constitu- 
tion guaranteed to the citizens of the Territories of the 
United States the right of trial by jury. It must now be 
accepted as the settled and unalterable rule of construction 
with reference to the power of the general government over 
the Territories. 

What then are those fundamental limitations in favor of 
personal rights which were '* formulated in the Constitu- 
tion and its amendments, and with which the government 
can not interfere within the Territories of the United States?'' 
A catalogue of them would require a recital of the entire 
l)ill of Rights and of the 14th Amendment, as well as of 
some other portions of the Constitution; but there are cer- 
taii» clauses which are of especial importance with reference 
to the proposition now under discussion. Such are the pro- 
visions that all taxes and excises shall be uniform through- 
out the United States; that the right of jury trial as at com- 
mon law shall not be denied, nor the writ of habeas corpus 
suspended. No person can be held to answer for crime ex- 
cept upon the {)resentment or indictment of a grand jury; 
and the right to become citizens of the United States, and, as 
such citizens.to go freely, without hindrance or obstruction on 
the part of Congress or of any State, from any |)orlion of (he 
country to every other portion, will be inviolable. In view of 
the i)articular |)roposition now mooted, this last right, 
affirmed by the Supreme Court in the case of (^randall v. T/ic 
/^(atc of Nevada, 6 Wall. 35, to be derived, not so much from 
anv particular jtiovision of the C-onstitution as frc^n its gen- 
oral nature and purpose, is one of the most important. 



17 

Tlie right to become a citizen of the United States has 
been affirmed very recently by the Supreme Court in the 
case of the United States v. Wong Kim Ark, 169 U. S. 649, 
decided on the 28th day of March, 1898, in which it is 
affirmed that the children of Chinese unnaturalized and 
unnaturalizable parents, born within the United States, are 
by virtue of the l-lth Amendment to the Constitution, citi- 
zens thereof, and entitled to all the rights, personal and 
political, of other citizens of the United States. 

It results, from the foregoing considerations, first, that it 
is wholly without the power of the government to acquire 
colonies not so fitted or located as to be prospective States of 
the American Union. This limitation upon the powers of 
the government, however, can probably not be enforced, be- 
cause the Supreme Court will be bound to assume that any 
territory taken is acquired with the intention of ultimately 
erecting it into States of the American Union, however notori- 
ous it may be that such a consummation will be impossible. 
It will feel bound to impute to Congress and the Executive 
sincerity of motives, just as it felt bound to impute to Con- 
gress and the Executive such sincerity of motive in the law 
subjecting the circulation of State banks to a tax often per 
cent for the sake of revenue,' when to every one, except the 
court in its judicial capacity, it was perfectly evident that 
such tax could never result in a penny of revenue, but that 
the sole purpose and effect of it was and must be the extin- 
guishing of such circulation — an end not attainable under 
the Constitution except by such indirection. There appears 
to be no method known to the Constitution by which the 
motives and beliefs of the other departments of the govern- 
ment can be put upon trial, and if Congress and the Exec- 

iVeazie Bank vs. Fenno, 8 Wall. 533. 



18 

utive affirm their belief tliat the moon is made of green 
cheese, or may by irrigation and the introduction of heating 
plants be rendered suitable for colonization, the Supreme 
Court will assume that they so believe. This is one of those 
constitutional provisions, then, which depends for its en- 
forcement ui)on the zeal of those who love their country 
and its institutions, and would not willingly see them per- 
verted from their fundamental purposes. 

Second: Such Territories, once annexed, it follows from 
the foregoing considerations that they can not be held in 
military subjection; that they can not be ruled arbitrarily, 
either by the President or by Congress, or by both combined ; 
that the Philippino will have the same personal rights un- 
der the Constitution as the citizen of Illinois; that the writ 
o{ hahcas corpus must always be available to him; that trial 
bv jury can not be abridged; that no separate scheme of 
imposts or excises can be enforced in such colonies different 
from that in the mother country, and that all the inhabit- 
ants of such annexed territory, or at the very latest, their 
children born subsequent to the annexation, nmsthave free 
access to all portions of the United States and the same 
political rights as other citizens in like situation. In view 
of this last proposition it is scarcely to be wondered at that 
the most strenuous opposition thus far developed to this 
scheme of annexation comes from the laborers of the country 
and their leaders. 

Perhaps, in point of fact, we need anticiiiato no particular 
deluge of immigration from these islands, as the natives of 
the tropics seldom care to incur the rigors of more northern 
climates, or flourish if they do; but with tiio removal of all 
custom liouses between the Philippines ;ind tht.' markets of 
the United States it will be iuimutt'rial whether the cheap 
labor of the.se millions of savage and semi-savage peof)le 



19 

competes with our labor in our own workshops, or indirectly 
by throwing its products into our markets. 

The talk of maintaining in the Philippines the fjolicy of 
an "open door'' is idle talk unless either the Constitution 
is to be abrogated or the whole country is to be thrown open 
in like manner to the trade of the world. And how will the 
tropical and exclusively agricultural Philippinos enjoy pay- 
ing tariff taxes of fifty to sixty per cent for the exclusi vebenefit 
of manufacturers on the other side of the globe, and of their 
workmen, many of wliom receive for a day's labor as much 
as a Philippino earns in a month? Or will thebeneficiariesof 
protection consent to relieve us nil of the taxes levied upon 
us because it will be manifestly unjust to exact ihem from the 
Philippinos? Shall we maintain our anti-Chinese legislation 
while perforce admitting to all portions of our territory, and 
to all the rights of citizenship those who in the Philippines 
are the servants of the Chinese? How will juries, grand and 
petit, and the legal machinery appertaining thereto, work 
among the hordes of illiterate and degraded wretches who 
compose so large a proportion of the population of these 
islands? And if we apply our navigation laws to them, as we 
must, unless we repeal them altogether, can we send our sol- 
diers to put down rebellion against a policy which so short a 
time ago was an efficient cause in inducing rebellion on our 
part against our mother country? If we attempt to extend 
to them even that portion of our anti-Chinese laws which 
would forbid the further immigration into those islands of 
the most thrift}' and prosperous people now inhabiting 
them (as we must, unless we are prepared to abandon our 
present anti-Chinese policy at home), what answer shall we 
have for them when they quote that specification of the 
Declaration of Independence wherein our fathers indicted 
the King of Great Britain, because " He has endeavored to 



20 

prevent the population of these States; for that purpose 
obstructing the laws for naturalization of foreigners; re- 
fusing to pass others to encourage their immigration hither, 
an J raising the conditions of new appropriations of lands." 

It is sometimes said that we can manage or misujanage 
the Philippinos as we have the Indians {absit omen), and 
that no greater constitutional difficulties will be found in 
one case than the other. But even if our dealings with the 
Indians were not a frightful warning to all people who go 
forth lightly to impose their rule on inferior races, the con. 
elusion is not a just one. We have managed to deal with 
the Indians as we have, possibly without violating the Con- 
stitution, because of their separate and independent tribal 
organization pertinaciously maintained by them. They 
have been in contemplation of law, independent, co-ordinate 
nations, with whom our relations were those of treaty or 
agreement. Our relations to the Indians have been thus 
defined by the Supreme Court: 

"These Indian Governments were regarded and treated 
as foreign governments, as much so as if an ocean had 
separated the red man from the white; and their freedom 
has constantly been acknowledged from the time of the first 
imnjigration to the English colonies to the present day, by 
the different governments which succeeded each other. 
Treaties have been negotiated with them, and their alliance 
sought for in war; and the people who compose these Indian 
political communities have always been treated as foreigners 
not living under our government." ' 

The territory occupied by them from time to time was 
not subject to the Constitution of the United States, because 
it was not part of tiie territory ui the United States, but of 



Dred Scoti v. Saiiforil, 19 How. 393. 



21 

the Indian nation or tribe inhabitins; it; surrounded, to be 
sure, by the territory of the United States, and ultimately to 
revert to that nation if the Indian title should ever be 
extinguished. Down to 1871 all our relations to these 
tribes or nations were governed by treaty, as fully and form- 
ally as our relations with Great Britain or Spain. Since 
that time legislative enactments assented to by the Indians, 
and compacts and agreements not amounting in dignity to 
treaties, but substantially the same in fact, have taken the 
place of formal treaties. But so soon as the Indians have 
abandoned their tribal organizations, as many of them have^ 
and entered among the body of the people of the United 
States, they and their children have become citizens of the 
United States. There exists no evidence that such condi- 
tions exist or could be brought to exist in the Philippine 
Islands. Nor are we proposing to make a treaty of annexa- 
tion with native tribes, but with Spain. Spain has never 
recognized any independent sovereignties in the islands, 
and it appears clear that the legal status of the entire popu- 
lation (except unnaturalized foreigners), so far as it has 
been brought under Spanish dominion, is that of subjects 
and citizens of Spain. In acquiring the islands we shall 
acquire them as subjects, and, if not them, their children, 
as our fellow-citizens under the fourteenth amendment to 
the Constitution, as construed in the case of Wong Kim 
Ark. 

Shall we not pause before we incur the responsibility for 
them and for ourselves of such action? Is it not clear ti)at 
our Constitution was intended for a homogeneous self- 
governing people — that under its provisions no place exists 
for foreign colonies and subject races? And if we were not 
"hampered by a written Constitution," can we now avow 
and i)ut in practice the right of the strong to take, and of him 



0'~> 



who can to govern the weak, without being false to our his- 
tory and to those traditions which have been our proudest 
heritage for a hundred years? 

Sliall we not rather leave it to nations not thus hampered 
by either constitutional or moral scruples, to go forth to con- 
quer and be conquered, to spoil and to be spoiled, in the old 
familiar way that has filled the world with woe since time 
began — remembering for ourselves that it is just as true now 
as it was in the days of George the Third, that governments 
derive" their just powers from theconsent of the governed"? 



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